Kashmir's judiciary has been virtually unable to provide any recourse for victims of human rights violations or relief for their families because security personnel routinely flout laws and procedures that would afford detainees and witnesses some protection. Authorities admit that if cases were to come before the courts under normal procedures, it would be extremely difficult to convict suspected militants. A lawyer for the Jammu and Kashmir Bar Association told Human Rights Watch that acquittal rates in such cases neared 100 percent, principally because the government is unable to find witnesses willing to testify against the detainees; most would not do so out of fear of retaliation from militant groups, or out of solidarity.53

In response, the government avoids courts to the extent possible, either by detaining suspects indefinitely by administrative means or by killing them. The Public Safety Act allows for a non-renewable two-year detention without trial. Once the detention order expires, new charges are brought against the detainee, often based on an alleged crime committed in the early 1990s when the Terrorist and Disruptive Activities Act (TADA) was in effect.54 TADA provides for one year of detention without trial. When detainees appeal to the High Court, the court often orders the government to show cause or release the detainee, but to little effect. According to the bar association, the government has issued instructions now to the police not to comply with High Court rulings without informing the security forces first. If a detainee is set to be released, new charges are brought, and he is "re-arrested" on the new charges that permit periods of detention up to two years. As a result, detainees may be held indefinitely; the bar association has documented cases of detainees being held for six or more years despite multiple release or bail orders from the courts.

Driven by a need for greater deniability about their actions, in many cases the security forces avoid the court system entirely by summarily executing detainees and then portraying the event as a death during an armed encounter. In other cases the security forces simply deny ever having arrested the person. The practice of summarily executing or "disappearing" suspected militants has not changed since the early 1990s. Lawyers contend that hundreds of habeas corpus rulings ordering the security forces to produce detainees in court have been ignored. It is symptomaticof the magnitude of Kashmir's human rights crisis that such a fundamental protection under the law is treated by government officials with contempt.

Detention Practices that Facilitate Abuse

Most detainees in Kashmir are never formally arrested yet are detained for months or longer without charge. There are forty official detention centers in Kashmir; some detainees are also held outside the state in Delhi or Uttar Pradesh. In addition to the official centers, the government also operates some secret facilities.

In October 1997, the state government transferred the power of releasing detainees from prison authorities to the police. According to a human rights lawyer in the state,55 the result has been that prison authorities are no longer required to obey High Court orders to release a detainee even if the court determines that there are insufficient grounds for arrest. The police have final authority in such cases.

Detainees who are ultimately charged are generally charged under the Jammu and Kashmir Public Safety Act (PSA) or under the Terrorist and Disruptive Activities Act (TADA). Under the PSA, a detainee may be held in administrative detention for a maximum of two years without a court order. At the detainee's request, an advisory board consisting of three judges may be assembled to review the detainee's case. The detainee may make this request only once.

TADA has been widely used in Kashmir against persons suspected of having ties with militant groups. The act (as amended in 1987) authorizes administrative detention without formal charge or trial for up to one year. It virtually criminalizes free speech. Under the TADA, anyone who "knowingly facilitates the commission of any disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to a term of life and shall also be liable to fine." A disruptive activity includes "any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, (i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or (ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union." The provisions of TADA also substantially increase the risk of torture.56

Although TADA lapsed in 1995, the security forces in Kashmir continue to charge detainees under TADA, claiming that the crime committed occurred before TADA was repealed.57 According to a human rights lawyer in Kashmir, during the period when TADA was in force, many of the cases registered at police stations were vaguely worded and did not always link an alleged crime to a specific individual. A militant group would be accused of a particular violent act, but the individual members of this group were not necessarily named in the First Information Report (FIR). These cases have remained under investigation, even after the repeal of TADA, and suspects arrested since the repeal of TADA are frequently accused of having participated in the crime at the time the FIR wasregistered. In such cases, according to security officials, TADA continues to apply, and such suspects may be arrested under TADA. The courts in Kashmir have not challenged the retroactive use of TADA.58

Human rights lawyers complain that there is little recourse available to them to intervene in cases of detention and "disappearance." If the whereabouts of the detainee are known but no charges have been filed, the lawyer may go to court and demand that the charge sheet-the formal registration of charges-be provided. In many cases, however, the whereabouts of the detainee are not known. In that case, a lawyer takes a habeas corpus petition to the High Court under Section 491 of the Criminal Procedures Code. If the government does not respond to the court's subsequent request to account for the person, or if the government claims it is not detaining the person, a district judge can order an enquete (inquiry). If the person is arrested under the Public Safety Act (PSA), there is a far better chance that the detainee will be produced in court than if he or she is detained under no specific charge. Screening committees which function at the district and state level review court orders and can decide to ignore orders for release or bail. If a detainee agrees during interrogation to join the countermilitants he may be released without a court order.59

Detention of Nur Mohamed KalwalThe case of Nur Mohamed Kalwal, a resident of Mir Muhalla, Nowhata, is illustrative. Kalwal, a leading member of the JKLF, was arrested by the CRPF on September 8, 1991. On February 29, 1992, he was placed under PSA detention for one year, which he spent in Udhampur jail. When his term expired on February 28, 1993, he was moved to the Joint Interrogation Center jail in Korbawal, Jammu but was not released. In 1993, his lawyer filed a petition for his release with the High Court; the case was registered as 387/93. The state failed to explain why Kalwal was not released. In 1995 the High Court issued a directive that the state should either release Kalwal or produce him before the court. Although Kalwal was transferred to the subjail of Rangrate, apparently to bring him before the court, he was not produced in court. The High Court then initiated contempt proceedings against the state.

In 1996 the district magistrate issued a PSA order against Kalwal for one year. In 1997, his lawyer filed a petition with the High Court challenging this new order, and the High Court accepted the argument, set aside the PSA detention order, and ordered the detainee released. The state did not release him, however, but filed a charge against him at the TADA court under a 1991 FIR, namely that a revolver was lifted from him at the time of his arrest in 1991. This charge had never been mentioned before.

The lawyer approached the TADA court, which granted bail. The prosecution then showed to the judge a letter from Counter-Intelligence Kashmir (CIK) to the prosecutor saying that he should make sure that the detainee would not be physically released, and that if he were to be released, the CIK should be notified immediately. The prosecutor also showed a letter from the CIK to the central jail of Srinagar saying that if they received an order from the court for his release, they should inform the CIK immediately so that it could continue to detain him. Although Kalwal's lawyer was permitted to read the letters, the judge refused to make them public, claiming that they were private letters between two agencies outside the court.

As of the Human Rights Watch interview, Kalwal remained in jail, awaiting trial. His lawyer commented, "Each time he is brought to court, a CIK vehicle accompanies the vehicle in which he is transported, just to make sure they will nab him in case he gets set free."60

Detention of Abdel Majid Gadyara, Mehraizin Gadyara and Farouq [last name unknown]Abdel Majid Gadyara, a resident of Kalal Doori, Nidkadal, Srinagar, had been arrested by the security forces a number of times and released. On September 21, 1998, he was again detained, this time by the STF. After a lawyer for the family submitted a bail application, the chief judicial magistrate requested a charge sheet from the arresting STF officer. When the STF officer refused to provide the court with the charges, the court instituted proceedings against the officer for contempt of court and issued a warrant for his arrest on September 29. The STF officer responded to the warrant by stating that he was not liable for the charges because the detainee had been transferred to Safakadam police station and was no longer his responsibility. The chief judicial magistrate then moved the petition to the Court of Judicial Magistrate, City Munsif, Srinagar (a regular procedure), ordering Abdel Majid Gadyara released on bail, and he was so released on October 3.

In what was apparently a retaliatory move, on October 12 the STF arrested Abdel Majid's cousin Farouq, as well as Abdel Majid's younger brother Mehraizin. Mehraizin Gadyara had previously been detained on a number of occasions and held without charge. During his previous period of detention his legs had been broken during interrogation, and after he appealed to the State Human Rights Commission, he was released on bail. After the two were detained, the family's lawyer immediately filed a habeas corpus petition, and the STF then submitted the charges against the two men. They were charged with murder and possession of weapons under the Ranbir Penal Code, the Indian Arms Act, and the Enemy Agent Act. These offenses carry a possible death penalty.61

Detention of Abdelaziz DarAbdelaziz Dar, forty, a resident of Saida Kadal, Raniwari, Srinagar, has been in custody since 1993, despite the fact that he completed his one year of administrative detention under the PSA in 1994.62 He is a leading member of the Jamaat-i Islami in Srinagar. His father was also with Jamaat-i Islami. Abdelaziz Dar was first arrested after the 1987 elections and was detained for a year without trial. After his release he became a district commander of the Hizb-ul Mujahidin and was again arrested on September 16, 1991, and detained for one year under PSA. He told Human Rights Watch that after his 1992 release, he continued to work with the Jamaat-i Islami but no longer with Hizb-ul Mujahidin. He was again arrested on February 1, 1993 and detained for one year under the PSA. His administrative detention was completed in June 1994, but he was not released. He has not been told the reason. Although the High Court ordered him released on bail, as did two TADA courts, one on November 7, 1996, and one on February 24, 1997, he has been kept in jail under his original file, 1/92. Justice A. M. Mir of the High Court noted in a statement ordering Dar's release that "any detention after a bail order having been passed and served will be wrongful in the eye of law."63

The various security forces cooperate with each other to instill fear and ensure compliance from the local population. G. told Human Rights Watch that in January 1997, following a number of explosions on the road to the airport, the local BSF commander questioned his son, who had a shop in the market, about who was behind the blasts. After this had happened a few times, the BSF took the son into custody.

The next day I went to see senior BSF officers. They gave me a polite but comprehensive warning that I should cooperate with the security forces or face the consequences, in light of the fact, they said, that my son had confessed to having links with foreign militants. Now there were Afghani militants coming to the store, so I told them that there was nothing I could do about that: Afghans come to the store, as does the military. I couldn't stop them.64 After a little while, the senior officerstook me to the commanding officer at Totuground, an interrogation center in Srinagar. The commanding officer repeated the charge that my son had connections with the militants ... So then I told him that if my son would confirm the same in my presence, I would not object to whatever lawful punishment they would choose to mete out to him. He told me: "We want to be lenient, provided that you cooperate with us in normalizing the military situation and provide information." I then repeated that if my son had confessed, he should be punished, and asked that I be allowed to ask my son this question. He agreed to that, so I asked my son, "What did you tell him?" And my son said that Afghani militants sometimes come to the store, and he could not help this.65

The BSF officers then produced an informer who claimed that the son had contacts with the militants. G. questioned the informer, who admitted he did not have information about the son. The son was released that evening. However, half an hour later, the house was surrounded by the local Rashtriya Rifles unit, accompanied by countermilitant forces, who told G. to hand over his son and threatened to throw explosives into the house if he did not. G. left the house to tell a local journalist, who called the army public relations office to complain. G. stated:

As I reached my home, the Rashtriya Rifles party and renegades [countermilitants] were withdrawing, but not before telling me that they would be back by 10:00 p.m., and if my son wasn't there, there would be real damage. At this point, all the members of my extended family, seventeen persons, fled the house, as did some of the neighbors from their homes, fearing blasts. At 10:00 p.m., the party returned; I was alone in the house. My son was not there. They were a bit more polite now and said they would return at 8:00 the next morning. And they did show up the next morning, this time without the renegades. My son was still not there. Then they drew a survey map of my house and shop and left. Immediately afterwards, the BSF officer who had arrested my son came to the house. He was friendly and courteous. He told me that my son and I were in big trouble, as the army [the Rashtriya Rifles] had taken over the case: "They are ruthless. So you'd better follow my directions, as the army will listen to me. You should make sure to keep your neighborhood free of militancy. And keep your son away until you get further instructions." I acted accordingly. I spent four miserable days before deciding to send my son to Delhi for safety reasons. He stayed there for six months. He came back in July 1997 and must report once a month to the BSF to account for his activities. In the meantime, as my son wasn't there, I had to sell the shop ... I did have to concede a little on one thing. I said I couldn't account for the neighborhood, but that they had nothing to worry about from my family's compound.66

Detentions for Extortion

S., a shopkeeper in Srinagar, told the story of his neighbor, Rashad Ahmad Sheikh, eighteen, son of Mohamed Amin Sheikh, a resident of Babademb, Srinagar. Rashad was arrested by the local police of the Soura station in August 1998. He was not accused of any crime; the police apparently arrested him in extort money from his father, who was told to pay Rs. 30,000 [U.S. $750] in order to get his son released. That same night, the police also arrested another boy, Muzaffer Ahmad Najar, son of Mohamed Sultan Najar. But the father paid the SHO at Soura police station, and his son was released. Rashad's father, who earns only Rs 3,000 [U.S. $75] a month, could not afford to pay, so after about a month he went to the local court, but his son was not released. Under pressure from the police, Rashad reportedly confessed to having a grenade in his possession and faces prolonged detention under those charges.

In a similar incident, Aijaz Ahmad Karwar, about twenty-three, son of Ghulam Ahmad Karwar, who was also a resident of Babademb, Srinagar, was arrested on or about October 5, 1998, by police from the Zaina Kadal police station who were looking for his brother, Javed, about twenty-eight, who was believed to be with a militant group in Pakistan. Aijaz Karwar himself was not accused of any crime, nor was he asked to produce his brother. But the police have told his father, who visits him daily, to pay them Rs. 100,000 [U.S.$2,500] for his son's release. His father is a government employee with a salary of Rs. 6,000 to 7,000 [U.S.$150-175] per month and cannot afford this amount. Aijaz Karwar also works for the government as a junior engineer, earning roughly the same amount. S. described the father's reaction:

After seeing his son, he was crying and saying things like: "First I lost my oldest son, now my second one is in jail." All the neighbors went to see the state home minister, Mushtaq Lone, to provide guarantees that Aijaz was not a militant, but the minister referred the case to the SP [Superintendent of Police] of Srinagar. They then went to the SP, but he said he could not release Aijaz at this time. He told them to wait until November 1 after the government has left for Jammu. Then he would see what he could do.67

53 Interview in Srinagar, October 15, 1998.

54 In May 1995 the central government decided not to renew TADA and the law was allowed to lapse. For a more detailed discussion of TADA, see below.

55 Interview with lawyer in Srinagar, October 15, 1998.

56 Under ordinary law a detainee may be held in police custody after remand by the court for a maximum of fifteen days before being transferred to judicial custody. (Remand may be renewed.) However, under Section 20 of the TADA, a detainee may be held in police custody for up to sixty days. The extended period of police remand substantially increases the risk of torture. In addition, under the TADA a detainee need not be produced before a judicial magistrate, as is the case under ordinary law, but instead may be produced before an "executive magistrate"- that is, an official of the police or administrative services who is not answerable to the High Court.TADA reverses the presumption of innocence, placing the burden on the accused to prove he is not guilty, and it effectively amends India's Criminal Procedure Code and the Indian Evidence Act to allow the introduction into evidence of extrajudicial confessions made to a police officer "not lower in rank than a superintendent of police," thus substantially increasing the risk of torture.

64 The BSF was referring to militants who are believed to have come to Kashmir from Afghanistan.

65 Interview in Srinagar, October 18, 1998.

66 Interview in Srinagar, October 18, 1998.

67 Interview with S. in Srinagar, October 21, 1998. In November the state government in Jammu and Kashmir shifts from Srinagar to Jammu because the harsh winter weather makes many roads impassable. It returns to Srinagar in April.